Tuesday, September 20, 2011

DADT and other good news...

No doubt you've heard about the end of DADT, the military's policy on LGBTs in the service. You can read about its demise here and here. That's one campaign promise kept. Huzzah!

But with all the celebratory hoopla about DADT, you might have missed another gem -- this one dealing with property tax exemptions for married couples in Alaska.

Alaskan seniors above age 65 are allowed to exclude the value of their homes, up to $150,000, from property tax liability. However, the provision provides that the benefit is calculated more generously for married couples. For other co-residents -- brothers, sisters, cohabiting couples, and same-sex couples, to name a few -- are not eligible for this more generous calculation. The result is that same-sex couples pay hundreds of dollars a year more in property taxes than married couples with similar holdings.

The ACLU brought suit against the state of Alaska on behalf of three gay couples who would have been eligible for the tax break if they could marry.

On Friday, an Alaska trial court granted the couples summary judgment, finding that the tax provision violated the state's equal protection clause. The case is Schmidt v. State of Alaska, and you can read the opinion here. The court found that the tax code "violates Alaska's equal protection clause because it disparately burdens similarly situated taxpayers."

The court based its ruling on Alaska Supreme Court's holding in ACLU v. State, 122 P.3d 781 (Alaska 2005) (read the opinion here), in which the Court found that benefits reserved only for married state employees violated the state's equal protection clause.

What makes this interesting (at least to me) is that the court found in favor of the same-sex couples even though Alaska has a constitutional provision that defines marriage as being between one man and one woman. And it did so even though Alaska also has a statute that prohibits gay couples from reaping the benefits of marriage. "[T]he Marriage Amendment speaks only to the definition of marriage and does not mention the associated benefits of marriage." Schmidt, Slip op at 10 (emphasis in original).

In other words, the statute's anti-benefit provision cannot "trump" a constitutional amendment that has no such prohibition. To put it bluntly: "In Alaska, a marital classification facially discriminates based on an individual's sexual orientation." Id. at 15.

A couple of caveats. First, this was just a trial court ruling, and it may or may not survive an appeal. As the court noted, the ACLU case dealt with state employee benefits and not property taxes.

Second, the court specifically acknowledged that Alaska's equal protection clause provides broader safeguards than the federal version. This case has no applicability to the equal protection clause in the U.S. Constitution.

Third, the analysis will be different in states where a constitutional provision not only defines marriage in heterosexual terms, but specifically limits marital benefits to those couples.

Still, it's an awfully good sign: Judges are evolving on the issue of equal marriage rights along with the rest of us.

Even state constitutional amendments may not be enough to stop the momentum.